Citation Nr: 21022111 Decision Date: 04/14/21 Archive Date: 04/14/21 DOCKET NO. 16-49 994A DATE: April 14, 2021 ORDER Entitlement to service connection for post-traumatic stress disorder is granted. REMANDED Entitlement to service connection for a low back condition is remanded. FINDING OF FACT There is a proximate balance of evidence that the Veteran has a current diagnosis of PTSD, which is related to his military service. CONCLUSION OF LAW The criteria for service connection for PTSD have been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from January 1987 to August 1991. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a September 2014 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran appeared at a Board hearing before the undersigned Veterans Law Judge in January 2021. A transcript of the hearing is in the Veteran’s file. Service Connection Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. § 3.303. The three-element test for service connection requires evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166 -67 (Fed. Cir. 2004). Service connection for PTSD requires medical evidence diagnosing the condition in accordance with 38 C.F.R. § 4.125(a), a link, established by the medical evidence, between current symptoms and a stressor in service; and credible supporting evidence that the claimed stressor in service occurred. 38 C.F.R. § 3.304(f). Unless PTSD is diagnosed in service and the in-service stressor is related to that service, combat or to fear of hostile military or terrorist activity or to a prisoner-of-war experience or to a personal assault, the Veteran’s lay testimony alone may not establish the occurrence of an alleged noncombat in-service stressor actually occurred. 38 C.F.R. § 3.304(f). The VA Secretary shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107(b). Entitlement to service connection for post-traumatic stress disorder The Veteran contends that he should be service connected for PTSD, which he relates to a fire that occurred while he was serving aboard the U.S.S. Constellation and from the death of another service member from an accidental gunshot wound. In an August 2016 VA Memorandum, the RO conceded the stressor of fire aboard the carrier, based on verification from the carrier’s naval history record. The Veteran also provided an online record of the marine who was killed by an accidental non-hostile weapon discharge. VA treatment records show the Veteran was diagnosed to have PTSD and depression during the appeal period and is seeking counseling. See March 2020 VA treatment records. At the August 2016 VA examination, however, the examiner concluded the Veteran does not have PTSD but rather persistent depressive disorder with anxious distress. The examiner found his depression was less likely than not incurred in or caused by fire that occurred while serving on board the U.S.S. Constellation during service. The examiner noted that the Veteran functioned well from 1991 to 2006 without mental health treatment. Thus, the examiner was unable to establish a link between service and his depression. The examiner also indicated he did not diagnose PTSD because the Veteran did not meet the criterion of exposure to actual or threatened death, serious injury, or sexual violation. The Board notes, however, VA treatment records dated January 2015, show the Veteran stated he felt fear for his life as the fire was aboard a nuclear ship. In July 2017, the Veteran provided a nexus opinion letter from his treating VA provider. The provider stated the Veteran sought treatment because of severe PTSD symptoms which interfered with his relationships, school and work environment and the ability to interact with people in public. The examiner concluded that the Veteran’s diagnosis of severe PTSD results from multiple life-threatening events that occurred while on active duty. Given that the service stressor was conceded by the RO, VA treatment records reflect that the Veteran has PTSD, and a positive nexus was provided by his treating provider due to his military stressors, the evidence is at least in equipoise that the Veteran has PTSD due to his military service stressors. Resolving reasonable doubt in the Veteran's favor, it may be concluded PTSD was incurred in service. REASONS FOR REMAND Entitlement to service connection for a low back condition is remanded. The Veteran contends he injured his low back during service when he fell from a rope. He reports he also injured his right knee in that fall, which was service connected in 1991, however, he contends his back was not examined at the time. In the alternative, the Veteran contends he injured his back secondary to his right knee condition, due to the frequent falls associated with that disability. The Veteran has not been afforded an examination to determine the nature of his back disability and its potential causes. VA treatment records from October 2009 show the Veteran slipped and injured his lower back. It was noted he previously had back surgery. In February 2016, he slipped and fell resulting in burning, shooting pain to his back. The Veteran currently has moderate to severe degenerative facet arthropathy and disc space narrowing. The Board cannot make a fully informed decision on the issue of entitlement to service connection for a low back disability, without first attempting to obtain records concerning the Veteran’s back surgery, and because no VA examiner has opined whether the Veteran back disability is causally connected to service or the service-connected right knee disability. A remand is, therefore, necessary. The matters are REMANDED for the following action: 1. Ask the Veteran to identify any additional relevant records he wishes considered regarding this appeal, which records should be sought. In addition, with any necessary assistance from the Veteran, records relating to any back surgery should be sought. 2. After completing the requested development, schedule the Veteran for an examination by an appropriate clinician. The examiner should render an opinion as to whether it is at least as likely as not (50 percent or greater probability) that the Veteran's diagnosed low back disability: (a.) had its onset during active duty or is otherwise related to the Veteran's service, to include the Veteran's reported in-service fall; or, (b.) is proximately due to his service-connected right knee condition; or (c.) has been aggravated (worsened beyond the natural progression) by his service-connected right knee condition. A complete rationale must be provided for the opinions offered. 3. After completing the above actions, the Veteran's claims should be readjudicated based on the entirety of the evidence. MICHAEL E. KILCOYNE Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board B. Jaigirdar, Associate Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.